Small Claim Now Issued - bwlegal - letter of claim, reply then response, next steps

samboella

Noted, thanks Le-Kirk.  I'll make those changes.

1505grandad

I believe that the WS addresses the Court so references regarding Napier should be as "the claimant". - i.e.:-

"10. (You mention in all your correspondence) that I have not responded..."  -  should be (The claimant mentions in all their  correspondence)  -  and other similars to be amended accordingly.

Hopefully the experts will respond if this is incorrect.

Para 11.  -  typo re date  -  also if you are going to use the name of the person there is another typo.

samboella

Thank you 1505grandad.  I will make those changes.

Coupon-mad

This might help, I prepared this for someone else and the 2 quotes from Beavis assist, to show why PPCs can't add £60:

This runs in breach of the POFA at 4(5) and the Consumer Rights Act 2015 (‘the CRA’)1 at Schedule 2 (ref. s62 ‘Requirement for contract terms and notices to be fair’). This is explained in the CRA’s Guidance at 5.14.3:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

The Competition & Markets Authority (‘CMA’) is responsible for enforcing the CRA and their Guidance includes the fact that ‘indemnity’ is likely to be an unfair term in a consumer contract and seeking to recover a sum with which a consumer had no opportunity to acquaint themselves, as well as terms that have the effect of counting the same costs twice, are unfair.   

The CMA say: 

"The fairness of any term is assessed having regard to the other terms of the contract,

and even if not excessive when considered separately, may be unfair if it could operate together

with another term or terms so as to lead to the trader being compensated twice for the same loss."

This is precisely what is happening. 

Unlike penalties, parking charge levels cannot be plucked out of thin air.  The fixed charge must already include all costs and profit (ref ParkingEye Ltd v Beavis [2015] UKSC67 paras 98, 193 & 198). The High Court also held, around the time of the POFA, that the extra £60 is an ‘unrecoverable penalty’ ref. para 419, ParkingEye Ltd v Somerfield Stores [2011] EWHC 4023 (QB).

.

The Supreme Court President, Lord Neuberger made the position clear:
 "None of this means that ParkingEye could charge overstayers whatever it liked. It could not
charge a sum which would be out of all proportion to its interest or that of the landowner for whom
 it is providing the service.’’

Moore-Bick LJ added:
"In order to achieve a just outcome it is necessary in my view to return to the principles which underlie what is ultimately no more than a rule grounded in public policy, namely, that the court will not enforce an agreement for the payment in the event of breach of an amount which is extravagant and unconscionable, despite the importance which it would normally attach to enforcing contracts freely entered into."

Have you done the two Government Consultations or will you set aside a couple of hours to do them this weekend, pleeeeeease?!

samboella

Thanks, Coupon-Mad.  I'll make use of your comments.
RE: The consultation.  I have registered and downloaded the covering letter and draft consultation.  I have read the letter and will work my way through the consultation.  I will make some comments this week.

samboella

Coupon-mad, where would you suggest would be a sensible place within my WS to add the details from your previous comment?

Le_Kirk

samboella said:

Coupon-mad, where would you suggest would be a sensible place within my WS to add the details from your previous comment?

Wherever you talk about the Abuse of Process and adding the fake "debt control costs"

Le_Kirk

samboella said:

Thanks, Coupon-Mad.  I'll make use of your comments.
RE: The consultation.  I have registered and downloaded the covering letter and draft consultation.  I have read the letter and will work my way through the consultation.  I will make some comments this week.

Thanks for planning to do this; when you have completed the consultations, both for PAS 232 and the Code Enforcement Framework, do let us know.

It does take a bit of time for the PAS 232 although you can comment and save and then go back and review/submit later.  The Code Enforcement Framework Consultation is a bit quicker.

To date there have been ONLY 616 (as of Monday 5th October) comments on the PAS (it is not possible to collect statistics for the Code Enforcement Framework Consultation as far as I know).  I have made over 20 comments and I know other regulars have made comments and some posters have stated they will but if we take an average of 10 comments per person, that is approximately 61.3 people (who is this 0.3 of a person).  If motorists are to have their say, more of you need to do this.

As we always remind you when advising you on parking appeals and small claims court hearings - do NOT miss this deadline - 12th October!

samboella

Thanks, Le_Kirk. As soon as I get my WS submitted tomorrow I can give some time to the consultation.

Is anyone able to tell me whether point 12 makes sense directly after point 11?  I feel like something is missing prior to point 12 given the preceding points I make in 11.  Should I remove point 12 or does it make sense to those with more legal knowledge than I?

Actually reading and re-reading the parts after point 11 in  the WS, which I modelled on the example in the Newbies thread, I now think large chunks of it are not really relevant to my case and am concerned that I'm way off the mark.  I haven't had any comments to the contrary so I'm not 100% sure but then I'm also not sure if anyone has read the WS in it's entirety.

I've made my case with regards to the signage, but I'm not 100% sure of is the legal citations I'm making.  Am doing my best to understand it all and piece it all together in a way that back's up the points I'm trying to make but I must confess I am struggling.

I can't help thinking I'm making a complete pig's ear of this and that I will just be laughed at because my evidence doesn't make sense. 

Le_Kirk

Your witness statement (WS) is in support of "your defence as already filed" and so, if you have made points about signage in your defence, the supporting narrative and evidence needs to be in the WS.  Just make sure that all points about signage appear together.  Each paragraph really should have a number so that you can refer to "paragraph 11 Sir/Madam" rather than "the second unnumbered bit after the start of paragraph 11".  If you are concerned that there are parts of the WS that are not pertinent, just read it through and try to relate it to points in your defence.  If it doesn't support your case, chop it!